Comments on article 270. Private definition of the Court of the Civil Procedure Code of the Republic of Kazakhstan

1. When cases of violations of legality are identified, the court has the right to issue and send a private ruling, and if violations are committed by state bodies, officials and civil servants, the court issues and sends a private ruling to the relevant organizations, officials or other persons performing managerial functions, who are required to report on the measures they have taken within one month.

2. Failure to report on the measures taken shall entail administrative liability of persons to whom a private ruling is addressed for showing contempt of court in accordance with the requirements of Articles 119 and 120 of this Code. The imposition of an administrative penalty does not release the relevant persons from the obligation to report on the measures taken by a private court ruling.

3. If, during the consideration of the case, the court finds signs of a criminal offense in the actions of a party, other participants in the process, an official or another person, it shall inform the prosecutor about this.4. A private ruling may be appealed by the persons whose interests it concerns, in accordance with the procedure provided for in part four of Article 429 of this Code, and protested.

1. A particular definition must be legitimate and justified. Its validity is the result of a complete clarification and evidence of the circumstances relevant to the issue on which the private ruling was issued, and the conformity of the court's conclusions set out in the private ruling with reality. The legality of particular definitions is manifested in their compliance with the civil procedure law.Thus, a definition as a procedural act issued during the hearing of a particular case should not contain information and evidence collected and examined in other cases. The content of a particular ruling may not contradict the content of a court decision issued in the same process.The legality of private definitions also depends on the court's compliance with the limits of its powers when making them.In accordance with paragraphs 1, 2 and 3 of the regulatory decree of the Supreme Court No. 1 of June 25, 2010 "On the practice of making private Rulings by courts", violation of legality should be understood as acts that do not comply with the requirements of regulatory legal acts.Improper performance by persons cannot serve as a basis for making private definitions., participating in the case, procedural evidentiary duties.Courts make private rulings against organizations, officials and other persons performing managerial functions.Officials are recognized as persons who permanently, temporarily or by special authority perform the functions of a government representative or perform organizational and administrative functions or administrative and economic functions in state bodies, local governments, as well as in the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

Other persons performing managerial functions should be understood as the heads of executive bodies of commercial and non-commercial legal entities.The court makes a private determination on its own initiative; the persons participating in the case have no right to demand the issuance of private determinations. They can only draw the court's attention to the existence of circumstances indicating the need to issue a private ruling.A private ruling is made on the basis of circumstances established by the court separately from the court decision, but simultaneously with it. The issued private definition is announced at the court session on the case under consideration. The drafting of a reasoned private ruling may be postponed, but the court must announce the operative part of the private ruling at the same meeting in which the case ended. The declared operative part of the private definition must be signed by the judge and attached to the case.It is not allowed to make private determinations after the decision has been made and its entry into force.A particular definition is made in the form of a separate procedural document. It consists, like any definition, of four parts, while the descriptive, motivational and resolute parts are specific.According to the requirements of paragraph 5 of the normative resolution of the Supreme Court No. 1 of June 25, 2010 "On the practice of making private rulings by courts", the reasoning part of the private ruling should set out the arguments on which the court concluded that violations of the law had been committed, disclose the essence of the violations, specify specific regulatory legal acts, as well as the persons whose actions (inaction) led to a violation of the law. A particular definition should not contain specific instructions or suggestions regarding the activities of the persons whose interests it concerns, nor does it establish the type and measures of legal responsibility of the perpetrators.The operative part of the private definition should indicate the name and location of the organizations, as well as explain the provisions of the second part of Article 270 of the CPC on the consequences of non-fulfillment, unanswered or untimely response to a private definition, on the right and procedure for appealing a private definition.In accordance with paragraphs 7, 8 and 9 of the said regulatory resolution, organizations, officials and other persons performing managerial functions are required to inform the courts about the measures taken on it within one month from the date of receipt of the private ruling.

2. In case of leaving private definitions without consideration or failure to take measures to eliminate the violations of the law indicated in them, as well as late response to private definitions without valid reasons, the courts have the right to bring officials to administrative responsibility under Article 664 of the Administrative Code.The imposition of an administrative penalty does not relieve the relevant officials from the obligation to inform the court about the measures taken in accordance with the private definition.If the court has not issued a private ruling, despite the existence and sufficiency of the grounds for its issuance, the higher court, when checking the legality of a judicial act, she has the right to make a private ruling in accordance with the procedure established by Article 270 of the CPC.

3. If, during the consideration of the case, the court finds signs of a criminal offense in the actions of a party, other participants in the process, an official or another person, it shall inform the prosecutor about this by letter.

4. A private complaint may be filed against a private determination by the persons whose interests it concerns.Paragraph 10 of the above-mentioned regulatory resolution clarifies that if persons whose rights and legitimate interests are affected by private rulings did not participate in the consideration of the case, were unaware of the private rulings made against them and (or) missed the deadline for appeal established by law, they have the right to appeal against private rulings.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases